As filed with the Securities and Exchange Commission on December 11, 2001
Registration No. 333-69564
SECURITIES AND EXCHANGE COMMISSION
AMENDMENT NO. 2
TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
SPEEDCOM WIRELESS CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 58-2044990
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation)
7020 Professional Parkway East
Sarasota, Florida 34240
(941) 907-2300
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
Michael W. McKinney
7020 Professional Parkway East
Sarasota, Florida 34240
(941) 907-2300
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copy to:
Linda Y. Kelso
Foley & Lardner
200 Laura Street
Jacksonville, Florida 32202
(904) 359-2000
Approximate date of commencement of proposed sale to the public: From time to
time after this registration statement becomes effective.
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. [_]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box. [X]
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act of 1933, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act of 1933, please check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434 under
the Securities Act of 1933, please check the following box. [_]
The Registrant hereby amends this registration statement on such date or
dates as may be necessary to delay its effective date until the registrant shall
file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the registration statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
THE INFORMATION CONTAINED IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED.
THE SELLING SECURITYHOLDERS MAY NOT SELL THESE SECURITIES PURSUANT TO THIS
PROSPECTUS UNTIL THE REGISTRATION STATEMENT FILED WITH THE SECURITIES AND
EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER TO SELL THESE
SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE SECURITIES IN ANY
STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, PRELIMINARY PROSPECTUS DATED December 11, 2001.
PROSPECTUS
SPEEDCOM WIRELESS CORPORATION
18,013,762 Shares of Common Stock
______________________________
The selling securityholders who are identified in this prospectus may offer
and sell from time to time up to 18,013,762 shares of common stock of SPEEDCOM
Wireless Corporation by using this prospectus. Of these shares, 356,500 shares
are presently outstanding, up to 8,630,000 shares are issuable upon conversion
of presently outstanding convertible preferred stock and up to 9,027,262 shares
are issuable upon the exercise of outstanding warrants. Assuming the conversion
of the convertible preferred stock and exercise of the outstanding warrants, the
shares covered by this prospectus represent 65% of SPEEDCOM's outstanding common
stock. For more information, please refer to "Selling Securityholders" on page 6
of this prospectus.
Our common stock is traded on the Nasdaq SmallCap Market under the ticker
symbol "SPWC." On December 6, 2001, the closing price of our common stock, as
reported by the Nasdaq SmallCap Market, was $.88 per share.
______________________________
Investing in our common stock involves risks that are described in the
"Risk Factors" section beginning on page 1 of this prospectus.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is a
criminal offense.
The date of this prospectus is __________, 2001.
TABLE OF CONTENTS
Page
----
THE OFFERING.................................................... 1
RISK FACTORS.................................................... 1
RECENT COMPANY DEVELOPMENTS..................................... 1
WHERE YOU CAN FIND MORE INFORMATION............................. 4
FORWARD-LOOKING STATEMENTS...................................... 5
USE OF PROCEEDS................................................. 6
SELLING SECURITYHOLDERS......................................... 6
PLAN OF DISTRIBUTION............................................ 8
LEGAL MATTERS................................................... 9
EXPERTS......................................................... 9
i
THE OFFERING
The offering price for the common stock may be the market price for our
common stock prevailing at the time of sale, a price related to the prevailing
market price, at negotiated prices or such other price as the selling
securityholders determine from time to time.
RISK FACTORS
The shares of common stock being offered involve a high degree of risk.
The trading price of our common stock could decline due to any of these risks,
and you could lose all or part of your investment. Before you buy shares of our
common stock you should carefully consider the risk factors included under the
caption "Certain Factors That May Affect Future Result's Financial Condition and
Market Price of Securities" in the "Management's Discussion and Analysis"
Section of:
. our annual report on Form 10-KSB/A/2 for the year ended December 31,
2000, as amended,
. our quarterly report on Form 10-QSB/A/2 for the quarter ended March
31, 2001, as amended,
. our quarterly report on Form 10-QSB/A/2 for the quarter ended June 30,
2001, as amended, and
. our quarterly report on Form 10-QSB/A for the quarter ended September
30, 2001 as amended. You should also consider the following:
If the selling securityholders elect to convert their preferred stock and
exercise their warrants in order to sell the underlying shares of common stock
covered by this prospectus, it will result in a 174% increase in the number of
our shares of common stock outstanding.
We have 10,122,113 shares outstanding as of December 6, 2001. Of the
shares being offered by this prospectus, 17,657,262 shares are issuable upon
conversion of our outstanding convertible preferred stock or exercise of
outstanding warrants. Issuance of those shares will result in substantial
dilution to our existing shareholders and could have an adverse effect on the
market price of our stock.
The preferred stock and the warrants contain anti-dilution provisions that
will increase the number of shares issuable upon conversion or exercise if we
issue common stock or common stock equivalents (with certain exceptions such as
to participants in our stock option plans) with a purchase, conversion or
exercise price lower than the conversion or exercise price of the preferred
stock or warrants or lower than the then current market price of our common
stock. These provisions, especially those contained in warrants, could result in
even further dilution to the existing holders of our common stock. See note 8 to
the financial statements contained in our Form 10-QSB/A for the quarter ended
September 30, 2001, for a summary of these anti-dilution provisions.
RECENT COMPANY DEVELOPMENTS
In June 2001, SPEEDCOM issued the following securities in connection with
restructuring outstanding debt in the aggregate amount of $2,025,000:
. 955,146 shares of Series A convertible preferred stock,
. Series A warrants for the purchase of 916,361 shares of common stock
(exercise price $3.25), and
. Series B warrants for the purchase of up to 955,146 shares of common
stock (exercise price $3.25).
In August 2001, SPEEDCOM issued the following securities in a private
placement:
. 3,835,554 shares of Series B convertible preferred stock,
. Series A warrants for the purchase of 3,068,448 shares of common stock
(exercise price $2.50), including 916,361 Series A warrants issued in
exchange for the Series A warrants issued in the June transaction
described above, and
. Series B warrants for the purchase of up to 4,560,481 shares of common
stock (exercise price $0.01), including 955,146 Series B warrants
issued in exchange for the Series B warrants issued in the June
transaction described above.
The aggregate purchase price of $8.6 million was paid $2,722,400 in cash
and the balance was paid by the retirement of:
. 955,146 shares of Series A convertible preferred stock issued in June
2001,
. subordinated promissory notes in the aggregate principal amount of
$2,000,000 issued by SPEEDCOM in April 2001,
. promissory notes in the aggregate principal amount of $950,000 issued
by SPEEDCOM in June 2001, and
. other promissory notes in the aggregate principal amount of $512,800
issued by SPEEDCOM during 2000.
The new warrants and preferred stock issued in August 2001 were exchanged
for the old warrants and preferred stock in compliance with provisions of the
old warrants and preferred stock that entitled the holders to the benefit of
terms in the new warrants and preferred stock that are more favorable than those
contained in the old warrants and preferred stock.
Terms of the Series B Preferred Stock
The Series B convertible preferred stock may be converted, at the election
of the holder, at any time. Each share of Series B convertible preferred stock:
. is convertible into 2 shares of SPEEDCOM's common stock;
. has a liquidation preference of $2.25; and
. will accrue dividends, beginning August 23, 2003, to be paid upon
conversion at the rate of 14% of the liquidation preference.
However, if SPEEDCOM has not signed a definitive agreement for a bona fide
change in control transaction before December 28, 2001, which is publicly
announced before February 23, 2002 and which closes before March 31, 2002, the
conversion price will be adjusted so that each share of Series B convertible
preferred stock will be convertible into 2.25 shares of SPEEDCOM common stock.
The liquidation preference will increase to $3.38 ($4.50 if paid in stock) if a
2
change of control agreement is not announced by February 23, 2002 and closed by
April 23, 2002. The liquidation preference will increase to $3.04 ($3.83 if
paid in stock) if a change of control agreement is announced by February 23,
2002 and closed by April 23, 2002.
In addition, the terms of the Series B convertible preferred stock provide
for mandatory conversion, automatically, without any action on the part of the
holder, if
. at least 12 months after the date of issuance of the Series B
convertible preferred stock, the closing bid price of the common stock
exceeds $2.25 for a period of twenty consecutive trading days, and
. the underlying common stock is registered under the Securities Act of
1933.
Terms of the Series A Warrants
The Series A warrants, which expire August 23, 2006, have an exercise price
of $2.50 per share and may be exercised, in whole or in part, at any time during
their term. Beginning one year after issuance of the Series B preferred stock,
we may redeem the Series A warrants for $0.10 per share if our common stock
closes at $5.00 or more for 15 consecutive trading days at any time, provided
that the underlying shares are registered under the Securities Act of 1933.
Terms of the Series B Warrants
The Series B warrants may be exercised, in whole or in part, at an exercise
price of $0.01 per share, only as follows:
1. if SPEEDCOM, as reported in the notes to its financial statements
included in our Form 10-KSB for fiscal year 2001, fails to achieve
EBITDA of at least $00.00 during the fourth quarter of fiscal year
2001, then all of the Series B warrants will become immediately
exercisable as to the full number of shares of common stock
represented by the warrants;
2. if SPEEDCOM has an EBITDA gain of up to $100,000 during the fourth
quarter of fiscal year 2001, then the Series B warrants will become
immediately exercisable as follows: number of shares of common stock
not previously issuable upon exercise of the Series B warrants
multiplied by {1-(the EBITDA gain divided by $100,000)}; and
3. if SPEEDCOM fails to achieve a minimum of $4,500,000 in revenue (as
defined by generally accepted accounting principles ("GAAP")) for the
fourth quarter of fiscal year 2001, then the Series B warrants will
become immediately exercisable as to all shares of common stock not
previously issuable upon exercise.
For this purpose, "EBITDA" means operating profit (as defined by GAAP and
reported on SPEEDCOM's statement of income) plus depreciation and amortization
as reported by SPEEDCOM on its statement of cash flows.
3
The Series B warrants will expire on the earlier of April 15, 2002 or the
date that results in the holder receiving at least $1.52 per share in cash or
$1.91 per share in shares of registered common stock of the surviving company in
exchange for their Series B preferred stock.
Of the 18,013,762 shares of common stock covered by this registration
statement, 16,258,929 shares are issuable upon conversion of the Series B
convertible preferred stock and exercise of the warrants issued in August 2001.
On September 28, 2001, SPEEDCOM announced that it was restructuring its
management team in a move to reduce costs and improve profitability. Bruce
Sanguinetti, SPEEDCOM's president, and Jay O. Wright, SPEEDCOM's chief financial
officer, agreed to step down. Mr. Sanguinetti's duties will be divided among
Michael McKinney, SPEEDCOM's chairman and chief executive officer, and other
existing officers and Mr. Wright's duties will be handled by Sara Byrne, vice
president of finance and accounting, and by Mr. McKinney.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other
financial and business information with the SEC. Our SEC filings are available
on the SEC's web site at http://www.sec.gov. You also may read and copy any
document we file at the SEC's public reference rooms in Washington, D.C., New
York, New York and Chicago, Illinois. Please call the SEC at 1-800-SEC-0330 for
further information about their public reference rooms, including copy charges.
In addition, you can read and copy our SEC filings at the office of the National
Association of Securities Dealers, Inc. at 1735 "K" Street, Washington, DC
20006.
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring to those documents. The information incorporated by reference is an
important part of this prospectus, and information that we file later with the
SEC will automatically update and supersede information in this prospectus and
in our other filings with the SEC. We incorporate by reference the following
which we have previously filed with the SEC under the Securities Exchange Act of
1934 (File No. 0-21061):
. Our Annual Report on Form 10-KSB/A for the year ended December 31, 2000 as
amended;
. Our Quarterly Reports on Form 10-QSB/A for the quarters ended March 31,
June 30 and September 30, 2001, as amended; and
. The description of our common stock which is contained in our registration
statement on Form 8-A.
We also incorporate by reference any future filings we make with the SEC
under Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934
until the selling securityholders sell all of the shares of common stock covered
by this prospectus.
4
You may request a copy of these filings at no cost, by writing or calling
us at the following address:
SPEEDCOM Wireless Corporation
7020 Professional Parkway East
Sarasota, Florida 34240
Telephone: (941) 907-2300
Attention: Michael W. McKinney
You should rely only on the information contained in, or incorporated by
reference into, this prospectus. We have not authorized anyone to provide you
with additional or different information. You should not assume that the
information in this prospectus or any document incorporated by reference is
accurate as of any date other than the date of those documents.
You may also obtain from the SEC a copy of the registration statement and
exhibits that we filed with the SEC when we registered the shares of common
stock. The registration statement may contain additional information that may be
important to you.
FORWARD-LOOKING STATEMENTS
We make statements in this prospectus and the documents incorporated by
reference that are considered forward-looking statements under the federal
securities laws. Such forward-looking statements are based on the beliefs of our
management as well as assumptions made by and information currently available to
them. The words "anticipate," "believe," "may," "estimate," "expect," and
similar expressions, and variations of such terms or the negative of such terms,
are intended to identify such forward-looking statements.
All forward-looking statements are subject to certain risks, uncertainties
and assumptions. Should one or more of these risks or uncertainties materialize,
or should underlying assumptions prove incorrect, our actual results,
performance or achievements could differ materially from those expressed in, or
implied by, any such forward-looking statements. Important factors that could
cause or contribute to such difference include those discussed in our annual
report on Form 10-KSB/A and our other periodic filings with the SEC.
USE OF PROCEEDS
We will not receive any proceeds from the sale of the shares of common
stock offered by the selling securityholders pursuant to this prospectus. We
will receive proceeds if selling securityholders exercise their warrants to
purchase shares of common stock. If the selling securityholders exercise all of
their warrants, the maximum gross proceeds received by us would be approximately
$11,838,807. When and if we receive these funds, they will be used for general
corporate purposes.
5
SELLING SECURITYHOLDERS
The shares of common stock offered by this prospectus have been or will be
issued to the selling securityholders (or their assignees) directly by us. The
following table sets forth certain information with respect to the beneficial
ownership of shares of our common stock by the selling securityholders as of
November 1, 2001 and the number of shares which may be offered pursuant to this
prospectus for the account of each of the selling securityholders or their
transferees from time to time. Information in the table may not include shares
held in nominee name unless we are aware of the ownership of these shares.
Except as described in the footnotes to the table, to the best of our knowledge,
none of the selling securityholders has had any position, office or other
material relationship with our company within the past three years (other than
as a security holder).
In determining the maximum number of shares which may be sold in the
offering by any selling security holder we have assumed exercise of all warrants
beneficially owned by the selling securityholders and conversion of all Series B
convertible preferred stock into common stock. For purposes of calculating the
percentage of class, we used the current number of common shares issued and
outstanding plus the total maximum number of shares which may be added in this
offering (excluding shares which may be issued as the result of anti-dilution
provisions). We did not include 4,455,519 shares of common stock issuable upon
the exercise of warrants and other rights to purchase our common stock held by
other stockholders and approximately 5,200,000 shares of common stock reserved
for issuance upon the exercise of employee and director stock options
outstanding on September 1, 2001. Assuming the sale of all shares covered by
this prospectus, no selling security holder will own 1% or more of our
outstanding common stock after completion of the offering. Unless otherwise
described in the notes to the table, all of the shares offered by the selling
security holders are issuable upon conversion of Series B preferred stock that
we issued in August 2001 and related warrants that we issued in June and August
2001, as described above under "Recent Company Developments."
6
Number of Shares Issuable Maximum
Shares Upon Shares Issuable Number of Number of
Known to be Conversion of Upon Exercise of Shares Which Shares Owned
Owned Prior Series B Outstanding May Be Sold in After the
Selling Securityholder to Offering Preferred Stock Warrants This Offering Offering
------------------------ ------------- ------------------- ------------------ ----------------- -----------------
S.A.C. Capital Associates,
LLC/(1)/ 3,619,922 3,746,679 7,366,601 0
SDS Merchant Fund, L.P./(2)/ 1,787,994 1,853,921 3,641,915 0
Oscar Private Equity
Investments, L.P./(3)/ 1,260,626 1,334,394 2,595,020 0
Irvin Kessler 600,001 530,402 1,130,403 0
Kessler Family Limited
Partnership/(4)/ 200,001 176,802 376,803 0
Bruce L. Sanguinetti/(5)/ 9,162 501,251 516,440 1,017,691 9,162
Thomas L. Shields, Jr. 95,000 252,000 222,768 474,768 95,000
Robert B. Prag 46,250 225,000 198,900 423,900 46,250
Frank M. Bishop 100,002 88,402 188,404 0
H.C. Wainwright & Co.,
Inc./(6)/ 173,000 163,000 10,000
Jason Adelman/(6)/ 100,000 95,000 5,000
George Reichl 50,002 44,203 94,205 0
The Endeavor Capital
Investment Fund S.A./(7)/ 50,000 50,000 0
DLJSC for the benefit of
Richard C. Ross 22,401 19,803 42,204 0
Scott Weisman/(6)/ 40,000 35,000 5,000
Matthew Balk/(6)/ 40,000 35,000 5,000
Tayside Trading Ltd./(8)/ 100,000 100,000 0
Eric Singer/(6)/ 22,000 22,000 0
William O. Shields 3,000 10,800 9,548 20,348 3,000
I. W. Miller Group, Inc./(9)/ 135,000 135,000 0
George Goebel/(10)/ 6,500 6,500 0
___________
(1) Voting and investment control of these securities is held by S.A.C.
Capital Advisors, LLC, the investment manager for S.A.C. Capital
Associates, LLC. Mr. Steven A. Cohen is the managing member of S.A.C.
Capital Advisors, LLC.
(2) The general partner of SDS Merchant Fund, L.P. is SDS Capital
Partners, LLC. Voting and investment control of these securities is
held by Mr. Steve Derby, the managing member of SDS Capital Partners,
LLC.
(3) Oscar Private Equity, LLC is the general partner of Oscar Private
Equity Investments, L.P. Voting and investment control of these
securities is held by Messrs. Brett S. Messing and Timothy F.
Sylvester, the managing members of Oscar Private Equity, LLC.
(4) Voting and investment control of these securities is held by Mr. Irvin
Kessler, the general partner of Kessler Family Limited Partnership.
Mr. Kessler is an affiliate of Knight Trading Group, Inc., a
registered securities broker-dealer. The investor acquired the
securities in the ordinary course of business and solely for its own
account for the purpose of investment and not with a view to, or for
sale in connections with, distribution.
(5) Mr. Sanguinetti is a director of SPEEDCOM and formerly served as its
president.
(6) In connection with the sale of the Series B convertible preferred
stock in August 2001, SPEEDCOM issued an aggregate of 350,000 shares
of common stock to H. C. Wainwright & Co., Inc. and officers of H. C.
Wainwright & Co., Inc. as partial compensation for their investment
banking services. Voting and investment control of these securities is
held by Mr. Stephen Barrett, chief executive officer of H. C.
Wainwright & Co., Inc. H. C. Wainwright & Co., Inc. is a registered
securities broker-dealer.
(7) In March, 2001 SPEEDCOM issued warrants for 50,000 shares of common
stock to The Endeavor Capital Investment Fund S.A. and 25,000 shares
to Tayside Trading Ltd. as part of a private financing transaction.
The warrants were issued, along with a promissory note, to the
Endeavor Capital Investment Fund S.A. and to Tayside Trading Ltd in
exchange for capital.
7
The warrants have an exercise price of $6.00 per share and expire on
March 31, 2006. Voting and investment control of the warrants owned by
The Endeavor Capital Investment Fund S.A. is held by Mr. Barry Herman,
its president. Voting and investment control of the warrants owned by
Tayside Trading Ltd. is held by Mr. Esriel Pines, its president.
(8) In March, 2001 SPEEDCOM issued warrants for an additional 75,000
shares of common stock to Tayside Trading, Ltd. as compensation for
investor relations consulting services.
(9) Consists of shares issuable upon exercise of warrants which were
issued to I. W. Miller Group, Inc. as compensation for investor
relations consulting services. Voting and investment control of these
shares is held by Ira W. Miller, the president of I. W. Miller Group,
Inc.
(10) In September, 2001, SPEEDCOM issued 6,500 shares of common stock to
Mr. Goebel as compensation for web site development and investor
relations services.
PLAN OF DISTRIBUTION
The shares of common stock offered hereby may be sold by the selling
securityholders or by their respective pledgees, donees, transferees or other
successors in interest. Such sales may be made at fixed prices that may be
changed, at market prices prevailing at the time of sale, at prices related to
such prevailing market prices, or at negotiated prices. The shares may be sold
by one or more of the following (as well as other methods of sale):
. One or more block trades in which a broker or dealer so engaged will
attempt to sell all or a portion of the shares held by the selling
securityholders as agent but may position and resell a portion of the block
as principal to facilitate the transaction;
. Purchase by a broker or dealer as principal and resale by such broker or
dealer as principal and resale by such broker or dealer for its account
pursuant to this prospectus;
. Ordinary brokerage transactions and transactions in which the broker
solicits purchasers; and
. Privately negotiated transactions between the selling securityholders and
purchasers without a broker-dealer.
The selling securityholders may effect such transactions by selling shares
to or through broker-dealers, and such broker-dealers may receive compensation
in negotiated amounts in the form of discounts, concessions, commissions or fees
from the selling securityholders and/or the purchasers of the shares for whom
such broker-dealers may act as agent or to whom they sell as principal, or both
(which compensation to a particular broker-dealer might be in excess of
customary commissions). Such brokers or dealers or other participating brokers
or dealers and the selling securityholders may be deemed to be "underwriters"
within the meaning of the Securities Act, in connection with such sales. Except
for customary selling commissions in ordinary brokerage transactions, any such
underwriter or agent will be identified, and any compensation paid to such
persons will be described, in a prospectus supplement. In addition, any
securities covered by this prospectus that qualify for sale pursuant to Rule 144
might be sold under Rule 144 rather than pursuant to this prospectus.
We have agreed to bear all costs, expenses and fees in connection with the
registration of the shares of our common stock offered by this prospectus. We
have also agreed to indemnify the
8
selling securityholders against certain liabilities, including liabilities
arising under the Securities Act.
LEGAL MATTERS
The validity of 16,750,429 shares of common stock issuable upon conversion
of the Series B preferred stock and exercise of the Series A and Series B
warrants and intended to be sold pursuant to this prospectus will be passed upon
for SPEEDCOM by Jay O. Wright, former general counsel of SPEEDCOM. The validity
of 1,263,333 shares of common stock issuable upon exercise of other outstanding
warrants and intended to be sold pursuant to this prospectus will be passed upon
for SPEEDCOM by Foley & Lardner, Jacksonville, Florida.
EXPERTS
The financial statements and schedule of SPEEDCOM Wireless Corporation
appearing in SPEEDCOM Wireless Corporation's Annual Report (Form 10-KSB/A) for
the year ended December 31, 2000, have been audited by Ernst & Young LLP,
independent certified public accountants, as set forth in their report thereon
included therein and incorporated herein by reference. Such financial
statements and schedule are incorporated herein by reference in reliance upon
such report given on the authority of such firm as experts in accounting and
auditing.
You should rely only on the information incorporated by reference, provided in
this prospectus or any supplement that we have referred you to. We have not
authorized anyone else to provide you with different information. You should
not assume that the information in this prospectus or any supplement is accurate
as of any date other than the date on the front of those documents. However,
you should realize that our affairs may have materially changed since the date
of this prospectus. This prospectus will not reflect such changes. You should
not consider this prospectus to be an offer or solicitation relating to the
securities in any jurisdiction in which such an offer or solicitation relating
to the securities is not authorized, if the person making the offer or
solicitation is not qualified to do so, or if it is unlawful for you to receive
such an offer or solicitation.
9
SPEEDCOM WIRELESS CORPORATION
18,013,762 SHARES OF
COMMON STOCK
-------------------------
PROSPECTUS
-------------------------
_________, 2001
PART II
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The expenses in connection with the registration of shares of the selling
securityholders will be borne by SPEEDCOM and are estimated as follows:
Commission registration fee......................................... $ 4,957.76
Accounting fees and expenses........................................ $ 6,000.00
Legal fees and expenses............................................. $10,000.00
Miscellaneous expenses.............................................. $ 200.00
----------
Total............................................................... $21,157.76
==========
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Our Certificate of Incorporation permits us to indemnify our officers and
directors to the fullest extent permitted by Section 145 of the Delaware General
Corporation Law. Section 145 contains provisions permitting corporations
organized thereunder to indemnify directors, officers, employees or agents
against expenses, judgments and fines and amounts paid in settlement actually
and reasonably incurred and against certain other liabilities in connection with
any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that such
person was or is a director, officer, employee or agent of the corporation.
ITEM 16. EXHIBITS
See the attached Exhibit Index that follows the signature page.
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high and
II-1
of the estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than a 20
percent change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration
statement.
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement.
Provided, however, that paragraphs (1)(i) and (1)(ii) above do not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended
(the Exchange Act) that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(4) That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the registrant's annual report pursuant to Section
13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the Exchange
Act) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(5) That, for purposes of determining any liability under the Securities
Act of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(6) That, for the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(7) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the provisions described in Item 6 above, or
otherwise, the registrant has been advised that in the
II-2
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Sarasota, State of Florida, on December 11, 2001.
SPEEDCOM WIRELESS CORPORATION,
a Delaware corporation
By: /s/ Michael W. McKinney
------------------------------------
Michael W. McKinney
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
Chairman of the Board and
/s/ Michael W. McKinney Chief Executive Officer December 11, 2001
----------------------------------------
Michael W. McKinney
/s/ Sara Byrne Vice President of Finance December 11, 2001
---------------------------------------- and Accounting, acting
Sara Byrne Chief Financial Officer
/s/ R. Craig Roos Director December 11, 2001
----------------------------------------
R. Craig Roos
/s/ Mark Boyce Director December 11, 2001
----------------------------------------
Mark Boyce
/s/ John T. von Harz Director December 11, 2001
----------------------------------------
John T. von Harz
EXHIBIT INDEX
EXHIBIT DESCRIPTION OF EXHIBIT
NUMBER
3.1* Amended and Restated Certificate of Incorporation of SPEEDCOM Wireless
Corporation, as amended
3.2* Amended and Restated Bylaws of SPEEDCOM Wireless Corporation,
incorporated by reference to Exhibit 3.3 to the Registrant's Quarterly Report on
Form 10-QSB filed May 14, 2001 (File No. 000-21061)
4.1* Purchase Agreement, dated August 23, 2001, by and among SPEEDCOM
Wireless Corporation and the Purchasers, as defined therein
4.2* Registration Rights Agreement, dated August 23, 2001, by and among
SPEEDCOM Wireless Corporation and the Purchasers, as defined therein
4.3* Form of Series A Warrant of SPEEDCOM Wireless Corporation dated
August 23, 2001
4.4* Form of Series B Warrant of SPEEDCOM Wireless Corporation dated
August 23, 2001
4.5* Settlement Agreement between SPEEDCOM Wireless Corporation and I.W.
Miller Group, Inc. dated June 25, 2001
4.6* Registration Rights Agreement dated March 2, 2001, by and among
SPEEDCOM Wireless Corporation and the Initial Investors, as defined therein
4.7* Form of Warrant of SPEEDCOM Wireless Corporation dated March 2, 2001
4.8 Form of Warrant of SPEEDCOM Wireless Corporation dated June 11, 2001
(incorporated herein by reference to Exhibit 4.12 to the Registrant's current
report on Form 8-K filed July 2, 2001)
5.1* Opinion of Jay O. Wright as to the legality of 16,750,429 shares of the Common
Stock offered hereby (including consent).
5.1.1* Opinion of Foley & Lardner as to the legality of 1,263,333 shares of the
Common Stock offered hereby (including consent)
23.1** Consent of Ernst & Young LLP, Independent Certified Public Accountants
The Board of Directors
November 16, 2001
Page 2
EXHIBIT DESCRIPTION OF EXHIBIT
NUMBER
24.1* Powers of Attorney (included on Signature Page)
--------------
* Previously filed
** Filed herewith